Workshop 3 LLM Legal Research

Tutor Conall Mallory

Group Members: Arefin Ashraf KHAN Farin RATNA Israel AKANDE Khaled Mahmudur RAHMAN Shajid Md. Tanjid KABIR
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Topic: Drawing upon domestic and international legislation and case law, and appropriate secondary sources, discuss whether the United Kingdoms current position on prisoner voting rights is acceptable.

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Introduction The prisoners voting rights have been restricted underThe United Kingdom has a blanket legislation1 that restricts the rights of prisoners to vote. the UK legislation which This legislation raises much controversy and generated the questions onf the violation of Human Rights violation. This legislationThis issue has been referred to the European Court of Human Rights2 and most recently subjected to a very comprehensive debate in the House of Commons in February 2011. Thise essay paper will deal attempt to with the each part in turn show a chronology of the state of affairs as pertain the legislation as well as form an opinion on the . [Should have mentioned whether the current position is acceptable or not] Statutory Provision Section 3 of the Representation of the People Act 19833 provides that: (1) A convicted person during the time that he is detained in a penal institution in pursuance of his sentence or unlawfully at large when he would otherwise be so detained is legally incapable of voting at any Parliamentary or local election. [Should have paraphrased itacceptability ]of the United Kingdoms position on prisoner voting rights. The disqualification under Section 3 of the Representation of the People Act 1983 does not apply to prisoners imprisoned for contempt of court4 or following default in non-compliance with a sentence such as payment of a fine5 and, since the passage of the Representation of the People Act 2000, no longer effects prisoners held on remand. 6 In Hirst7 the Grand Chamber of the European Court of Human Rights Grand Chamber assessed the compatibility of ruled that sS.3 of the 1983 Act with directly contravened the provisions ECHR art.3 Protocol 1 with its blanket ban of prisoner voting rights. [should have explained what does article 3 say] They however confirmed confirmed that the individual
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Section 3 of the Representation of the People Act 1983 referred to as the 1983 Act hereafter. Referred to as ECtHR herein. 3 Referred to as 1983 Act herein. 4 Section 3(2)(a) of the 1983 Act. 5 Section 3(2)(c) of the 1983 Act. 6 Representation of the People Act 2000 s.5, inserting s.7A into the 1983 Act. The disenfranchisement of remand prisoners had been an accidental consequence of the residence requirements in the 1983 Act (see Home Office Working Party on Electoral Procedures, October 1999, paras. 2.3.8 and 2.3.9). 7 Hirst v United Kingdom (No.2) (2006) 42 E.H.R.R. 41

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rights bestowed as stipulated by ECHR aArt.3 Protocol 1 are not absolute, but cautioned that any limitations to the right to vote must not impair the very essence of ECHR art.3 Protocol 1.8 While alluding to doubts about whether disenfranchisement could in practice promote or achieve these aims, the majority held that inefficacy was not a reason to exclude these aims as untenable or incompatible per se .9 Section. 3 of the 1983 Act was criticised for being a blunt instrument which imposed a blanket restriction and as such did not reflect any direct link between the facts of any individual case and the removal of the right to vote.10 The violation of ECHR art.3 Protocol 1 was found by 12 votes to 5 and it is most significant to note that. The theBritish Judge, Sir Nicholas Bratza, voted with the majority. A few cases that further reinforce the decision in the Hirst case11 include Green V United Kingdom and Frodl v Austria.
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Essentially, [Should have discussed all the cases under a

single heading and more shorter] It had been found in a earlier case Hirst, that while the edge of appreciation relevant to art 3 of the First Protocol was wide, it was not all-embracing. Further, it had also been found in Hirst that s 3 of the 1983 Act remained a blunt instrument. It had striped of their Convention right to vote a significant category of persons and it did so in a way which was indiscriminate. The provision imposed a blanket constraint on all convicted prisoners in prison. It applied automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. S.ection 3 of the 1983 Act had has not been amended since the Hirst case. As a result, the applicantsprisoners haved been ineligible to vote in the general election in the United Kingdom in May 2010.14 The case of Scoppola v Italy
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Hirst v United Kingdom (No.2) (2006) 42 E.H.R.R. 4 at [62]. Hirst v United Kingdom (No.2) (2006) 42 E.H.R.R. 4 at [75]. Hirst v United Kingdom (No.2) (2006) 42 E.H.R.R. 4 at [77]. Supra

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[2010] ECHR 60041/08 (20201/04) (2011) 52 E.H.R.R 5(ECHR) 14 Sophie Briant, Dialogue, diplomacy and defiance: prisoners' voting rights at home and in Strasbourg *2011+ E.H.R.L.R. 3, 243-252, 246.

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The Court of Cassation dismissed his appeal in 2006, pointing out that only prison sentences of at least five years or life sentences entailed a permanent ban on the right to vote voting rights being forfeited for only five years in the case of prison sentences of less than five years. In 2010, his sentence was reduced to 30 years imprisonment by a judgment of the Court of Cassation setting aside the judgment of the Assize Court, by way of executing the judgment of the European Court of Human Rights of 17 September 2009. In that judgment, the Court held that there had been a violation of Articles 6 (right to a fair trial) and 7 (no punishment without law) and had indicated the urgent need to put an end to those violations by replacing life imprisonment by a sentence not exceeding 30 years imprisonment. is noteworthy as it shows the latest attempt of the The European Court of Human Rights in deliberating over reiterated that a blanket ban on the right of prisonersprisoners right to vote. It held that a blanket ban during their detention constituted an automatic and indiscriminate restriction ofn a vitally important Convention right falling outside any acceptable margin of appreciation, however wide that margin may be". It had held that a decision on disenfranchisement should be taken by a court and should be duly reasoned. While it was not disputed that the permanent voting ban imposed on the applicant had a legal basis in Italian law, the application of that measure was automatic since it derived as a matter of course from the main penalty imposed on him (life imprisonment). That general measure had been applied indiscriminately, having been taken irrespective of the offence committed and with no consideration by the lower court of the nature and seriousness of thatdegree of offence. The possibility that the applicant might one day be rehabilitated by a decision of a court did not in any way alter that finding. Thus, having regard to the automatic nature of the ban on voting and its indiscriminate application, the Court concluded that there had been a violation of Article 3 of Protocol No. 1. Frodl v Austria15 The judgment in Frodl became final on October 4, 2010 upon the refusal of the Austrian Government's request for referral of the decision to the Grand Chamber. The rejection of

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(20201/04) (2011) 52 E.H.R.R 5(ECHR)

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the referral request signified that, in the view of a panel of five judges16, the case raised no serious question affecting the interpretation or application of ECHR art.3 Protocol 1, and no serious issue of general importance17. [Should have made a point regarding whether this approach is acceptable or not] [Should have discussed the House of Commons Debate under a separate heading and much details] Conclusion It can be seen that section 3 of the 1983 Act has imposedimposes a restriction upon prisoners voting rights, however, it is submitted that thewhich runs contrary to Article 3 protocol 1 of the ECtHR had interpreted the provision as that creatinges an individual right to vote which must not be disproportionately restricted. When this issue been referred to the recentThe House of Commons recently dedeliberated on this matterbate, and the debate highlighted the rule of law, the sovereignty of Parliament and the separation of powers as to how human rights should be defined. Various UK public officers and MPs have expressed a strong opposition to allowing prisoners the right to vote and while there is a need for an acceptable and uniform framework of Human Rights in Europe, the peculiarity of individual nations must be taken into consideration. The yardstick within which the term acceptable is to be measured is difficult to interpret as a plethora of divergent opinions create an impasse. Therefore, itIt is yet to be seen as to when the UK would comply with the ECHR rulings and here this if it does the class of debate ends and which type of prisoners affected. would get the voting rights at the end. [Again need to mention acceptability of the current position] Words count: 986
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BIBLIOGRAPHY
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Comprising the President of the Court, two Presidents of Sections designated by rotation, and two other judges designated by rotation (Court's Rules r.24(5)). 17 European Convention of Human Rights art.43.

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JOURNALS 1. Sophie Briant, Dialogue, diplomacy and defiance: prisoners' voting rights at home and in Strasbourg *2011+ E.H.R.L.R. 3, 243-252 2. Danny Nicol, Legitimacy of the Commons debate on prisoner voting *2011+ P.L. Oct, 681-691 STATUTES 1. Representation of the People Act 1983 INTERNATIONAL CONVENTIONS 1. European Convention on Human Rights CASES 1. Hirst v United Kingdom (74025/01) (2006) 42 E.H.R.R. 41 (ECHR (Grand Chamber)) 2. Greens v United Kingdom (60041/08) (2011) 53 E.H.R.R. 21 (ECHR) 3. Frodl v Austria (20201/04) (2011) 52 E.H.R.R. 5 (ECHR) 4. Scoppola v Italy (No.3). (App. No.126/05) USEFUL SOURCE 1. www.legislation.gov.uk 2. The Telegraph, 24 Oct, 2011
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